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In a divorce proceeding, if one party gave false information which could be proven, but you did not have witnesses to testify at the trial because you did not know he would lie about things, can anything be done?

Asked on 3/24/00, 4:20 pm

1 Answer from Attorneys

One of my favorite sayings is "There are more liars per square foot in a courtroom than anywhere else in the world" Unfortunitly, too much of this goes on daily in courtrooms all over the country. It is a criminal offense and carries serious time in jail if a person is convicted. Practically, it is a crime that is almost never prosecuted even if the perjury is without a doubt. Most of the time it is used is against witnesses who falsely testify in a criminal case for a defendant. I was involved in a criminal case once when during cross examination of the State's witness, the person broke down and admitted all of his testimony was a lie. That witness was not prosecuted.

In Indiana if the lie was material (but for the testimony the decision would have been different) and amounted to fraud you can reopen the case and present new evidence. But before you can do this, it must have been something that was a total surprise and you had no way of knowing that would be the evidence presented. The burden is on you to show that you could not have known that the testimony or evidence would be presented. The other side will argue that you never asked what the evidence would be in discovery and therefore you waived surprise. Or that you did no investigation on the matter in issue. There are lots of rules and arguments that can be made on this issue.

Another problem is whether the court will believe your evidence. The court is the sole trier of issues of fact. This means that the court is the sole judge of the creditability of the witnesses and evidence and can believe as little or as much of the testimony of any witnesses presented.